Lionel Irons, et al v. Aircraft Service International, et al

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Lionel Irons, et al v. Aircraft Service International, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 19, 2010 N o . 09-30857 S u m m a r y Calendar Lyle W. Cayce Clerk

L IO N E L H. IRONS; SETH MARTIN, P la in t iffs - Appellants v. A I R C R A F T SERVICE INTERNATIONAL, INC., doing business as Aircraft S e r v ic e International Group, D e fe n d a n t - Appellee

Appeal from the United States District Court for the Eastern District of Louisiana U S D C No. 2:07-CV-9539

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* A p p e lla n t s Lionel Irons ("Irons") and Seth Martin ("Martin") appeal the d is tr ic t court's grant of summary judgment on their racial discrimination and r e t a lia tio n claims against their former employer, appellee Aircraft Service I n t e r n a t i o n a l Group ("ASIG"). Appellants also raise several issues related to v a r io u s evidentiary rulings and the jury's ultimate verdict in the subsequent

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-30857 t r ia l addressing their hostile work environment claim. Additionally, ASIG has file d a motion to strike portions of appellants' briefing, and appellants' have filed a motion to strike portions of ASIG's motion. We AFFIRM the judgment of the d is t r ic t court, GRANT ASIG's motion to strike, and DENY appellants' motion to s t r ik e and motion to file a supplemental brief. I . FACTUAL & PROCEDURAL BACKGROUND A S I G provides commercial aviation services to major airlines and airports, in c lu d in g fueling, ramp service, cargo handling, and fuel facility maintenance. Appellants, both African-Americans, claim that while employed with ASIG, they w e r e discriminated against on the basis of race, were subjected to racial h a r a s s m e n t , and were retaliated against in violation of Title VII of the Civil R ig h t s Act, 42 U.S.C. § 1981, and the Louisiana Employment Discrimination Law . Martin and Irons were both employed by ASIG at New Orleans

I n t e r n a t io n a l Airport. Martin was employed as a fuelman. His duties included fu e lin g aircraft operated by commercial carriers. Irons was employed as a fuel fa r m operator and was promoted to lead fuel farm agent. In this role, Irons was r e s p o n s ib le for all of the incoming and outgoing fuel at the airport. A. The Bonus B o t h Martin and Irons state that they reported for work in the wake of H u r r ic a n e Katrina to assist in any way they could. Both Martin and Irons also t e s t ifie d in their depositions that they spent their time after Katrina assisting w it h fueling operations for Signature Flights ("Signature"). Signature, a

s e p a r a t e , "sister" company of ASIG owned by the same parent corporation, p r o v id e s aviation services to corporate and other private clients. Appellants t e s t ifie d that several white individuals employed by Signature received bonuses fo r their post-storm efforts, but they, as ASIG employees, did not.1 Martin states
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In their appellate briefing, appellants contend that they offered evidence that two ASIG employees received bonuses after the storm. For Martin, appellants cite his deposition

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No. 09-30857 h e complained to Ronald Crouch ("Crouch") about ASIG's failure to give him a b o n u s for his post-Katrina efforts.2 Martin also states that he contacted Alton A d a m s ("Adams"), ASIG's general manager, about the bonus issue. Irons

t e s t ifie d that he contacted various members of ASIG's management personnel in c lu d in g Crouch, Adams, Landry Mathieu ("Mathieu"), and Terry Woodward (" W o o d w a r d ") about the bonus but did not receive a satisfactory explanation o t h e r than that ASIG did not give bonuses for the post-Katrina work of its e m p lo y e e s .3 B . The Promotions B o t h Martin and Irons allege they were required to complete extra a d m in is t r a t iv e steps to receive promotions. Irons claims he was required to p r e p a r e a letter of interest before being considered for a promotion to lead fuel a g e n t . After writing the letter, Irons was promoted. Irons testified that several w h it e employees in other departments were not required to write similar letters t o receive promotions. Martin also alleges he was unfairly required to prepare a letter of interest before being designated a temporary lead fuel agent. Martin p r e p a r e d the letter as requested and was given the temporary promotion.

as competent summary judgment evidence of this fact. Yet when asked "[d]o you know of any ASIG employee . . . who received a bonus [for working after Katrina]?" in the cited testimony, Martin responded, "To the best of my knowledge, I can't answer that question. To the best of my knowledge, I don't know." Appellants' brief directs the court to Irons's deposition testimony as well. But when asked if he was aware of any ASIG employees receiving a bonus, Irons testified, "Not ASIG." Appellants have failed to direct the court to any other summary judgment evidence establishing or even supporting an inference that the two ASIG employees mentioned by name in the briefing received Katrina-related bonuses from ASIG. Appellants cite no record evidence suggesting Martin told Crouch that he felt the bonus was withheld for racial reasons. Appellants cite no record evidence suggesting Irons told Crouch, Adams, Woodward, or Mathieu that he felt the bonus was withheld for racial reasons.
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No. 09-30857 M a r t in also alleges he was passed over for two permanent promotions d u r in g his time at ASIG on account of his race. He claims he was never given t h e opportunity to compete for a position as operations manager or for a position a s training manager. Martin testified that the operations manager position w o u ld have constituted a three-level promotion above his then-current position a n d the training manager promotion would have constituted a two-level p ro m o tion . Martin conceded that he never asked or inquired about the

p o s s ib ilit y of either promotion. C . The Terminations 1 . Martin I n July 2006, Dale Cancienne ("Cancienne"), an employee of United A ir lin e s ("United"), claims he saw Martin prefueling an airplane in violation of c o m p a n y policy. Cancienne approached Martin, who denied prefueling the

p la n e ; Martin contends he had only hooked up the fuel hose to prepare to fuel t h e plane. Cancienne reported the incident to Don Hardison, United's general m a n a g e r , who contacted Crouch. Crouch asked Martin's supervisor, Mathieu, t o look into the matter, and Mathieu counseled Martin regarding prefueling a s h o r t time later. As part of that counseling, Mathieu reviewed United's fueling p r o c e d u r e with Martin. The next day, Cancienne again reported he saw Martin p r e fu e lin g an airplane. Martin claims Cancienne confronted him and said, "You p e o p le don't know what you're doing." Cancienne reported the second incident t o ASIG, and Hardison sent a letter to Crouch requesting that Martin not be a llo w e d to fuel United planes. As a result, Crouch terminated Martin on July 2 0 , 2006. ASIG informed Martin that he was terminated for violating fueling p roced u res. 2 . Irons A s a fuel farm operator, Irons was responsible for monitoring incoming a n d outgoing fuel. Irons testified that he had been trained on how to perform 4

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No. 09-30857 t h e s e tasks at the outset of his employment. On August 8, 2002, Irons was s u s p e n d e d without pay for three days because he failed to follow fueling p r o c e d u r e s by leaving the premises during an ongoing pipeline operation. From M a y 2002 to June 2005, Irons received three additional written warnings. On N o v e m b e r 9, 2006, Irons received another write-up--this time for failing to p r o p e r ly maintain records. Approximately one month later, Irons was

s u s p e n d e d for two days for failing to conduct a pipeline test. At that time, Irons w a s warned that further failures to adhere to ASIG policy would result in his t e r m in a t io n . Finally, a memorandum describing Irons failure to follow daily c lo s e -o u t procedures was added to his file on March 5, 2007. I n September 2007, Irons was involved in a fuel spill. The gauges and e m e r g e n c y shut off for the fuel tank had not been working for some time. ASIG fo u n d after an investigation that Irons did not follow proper fueling procedures a n d was responsible for the spill. Irons admitted during the investigation that h e got "sidetracked," left the area to go to the bathroom, fill out paperwork, and m a k e phone calls--all in violation of ASIG policy. Crouch and Mathieu

in v e s t ig a t e d the cause of the spill, and, after consulting with Teresa Hoien, A S IG 's Human Resources representative, Crouch discharged Irons on September 2 4 , 2007, for ignoring ASIG's safety policies. D . The Noose Incident A t trial, Martin and Irons testified that they saw a noose hung around a c h o c o la t e milk bottle near a fuel rack at the ASIG facility. They testified that t h e y , together with ASIG union representative Myron Roberts ("Roberts"), o b s e r v e d the noose on a weekend sometime between December 2005 and J a n u a r y 2006. ASIG presented evidence demonstrating that Irons, Martin, and R o b e r t s had not worked together on a weekend during that period. Roberts then t e s t ifie d that the noose incident occurred in September 2005.

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No. 09-30857 A p p e lla n t s testified they brought the noose incident to the attention of A S I G management. All of the individuals they allegedly informed testified that t h e y were never told about the noose. E. The EEOC Charges M a r t in initiated an EEOC charge of discrimination and retaliation on July 1 1 , 2006. His EEOC charge was formally filed on October 4, 2006. In his d e p o s it io n , Martin could not recall if he told any ASIG manager that he had filed a n EEOC charge.4 I r o n s also initiated an EEOC charge of discrimination and retaliation on J u ly 11, 2006. His EEOC charge was formally filed on September 12, 2006. Irons testified that he did not bring the EEOC charge to the attention of anyone in management. F. Proceedings in the District Court O n December 17, 2007, Martin and Irons brought suit alleging claims of d is c r im in a t io n on the basis of race, racial harassment, and retaliation in v io la t io n of Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the Louisiana E m p lo y m e n t Discrimination Law. ASIG moved for summary judgment on all c la im s . On August 12, 2009, the district court granted summary judgment in fa v o r of ASIG on appellants' disparate treatment and retaliation claims. The d is t r ic t court denied ASIG's motion on appellants' hostile work environment c la im . The hostile work environment claim proceeded to a jury trial. During voir d ir e , appellants raised a Batson challenge with respect to ASIG's use of p e r e m p t o r y strikes to remove Juror 1 and Juror 5, both African-American

In their appellate briefing, appellants contend Martin "brought his E.E.O.C. charge to Adams attention," but do not provide any citation to record evidence in support of that proposition. The record cite they do provide references Martin's deposition testimony stating that he did not recall if he told anyone at ASIG about the EEOC charge.

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No. 09-30857 i n d i v i d u a ls . Counsel for ASIG offered justifications for the exercise of both s t r ik e s . First, ASIG's counsel explained that Juror 5 was struck because counsel t h o u g h t he saw a connection or smile between the juror and one of the a p p e lla n t s . Second, he explained that he struck Juror 1 because she appeared d is in t e r e s t e d and he was concerned she would be inattentive. Appellants'

c o u n s e l did not challenge the reasons given or offer other evidence suggesting t h e reasons were pretextual. The district court stated that it agreed that Juror 1 seemed disinterested and that it had observed a "discomforting personal c o n n e c t io n " between Juror 5 and one of the appellants. Accordingly, the district c o u r t denied both Batson challenges. A fte r a two-day trial, the jury returned a verdict for ASIG on appellants' h o s tile work environment claim. The district court entered judgment the next d a y . Appellants timely appealed. II. DISCUSSION A p p e lla n t s appeal: 1) the district court's grant of summary judgment on t h e ir race-based discrimination and retaliation claims; 2) several alleged e v id e n t ia r y errors in the trial on their hostile work environment claims; 3) the d is t r ic t court's denial of their Batson challenge as to two African-American ju r o r s ; and 4) the jury's verdict on their hostile work environment claim.5 A . The District Court's Grant of Summary Judgment

Following the close of briefing, ASIG moved to strike several portions of appellants' briefs. Specifically, ASIG moved to strike: 1) all reference to a mixed motive theory of discrimination; 2) all assertions that ASIG's failure to give Irons a pay raise constituted a retaliatory action; 3) all allegations that Martin was passed over for a promotion to temporary lead position on "several" occasions; and 4) all allegations that Martin was denied a promotion to permanent lead position. We grant ASIG's motion as none of these claims were presented in the district court. Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004) (arguments not raised in the district court are waived). Appellants, in response to ASIG's motion, moved to strike a portion of ASIG's motion to strike. That motion is denied. We also deny appellants' untimely "Motion for Leave to File Supplemental Brief," filed August 1, 2010.

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No. 09-30857 A p p e lla n t s ' first appeal the district court's grant of summary judgment on t h e ir race-based discrimination and retaliation claims in favor of ASIG. A grant o f summary judgment is reviewed de novo, applying the same standard as the d is t r ic t court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir. 2006). Our in q u ir y "is limited to the summary judgment record before the trial court." Martco Ltd. P'ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009) (internal q u o t a t io n marks omitted). We view the evidence in the light most favorable to t h e non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U .S . 574, 587 (1986), and the movant has the burden of showing this court that s u m m a r y judgment is appropriate, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). Summary judgment is appropriate where the competent summary

ju d g m e n t evidence demonstrates that there is no genuine issue of material fact a n d the moving party is entitled to judgment as a matter of law. Bolton, 472 F .3 d at 263; see Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. L ib e r ty Lobby, Inc., 477 U.S. 242, 252 (1986). 1. Race-based Discrimination A p p e lla n t s contend that the district court erred in granting ASIG's motion fo r summary judgment on their race-based discrimination claims related to the p o s t -K a t r in a bonus payments, ASIG's letter-writing promotion requirements, A S I G 's failure to promote Martin to operations manager or training manager, a n d each of their discharges. To establish a prima facie case of employment d is c r im in a t io n , appellants were required to show by a preponderance of the e v id e n c e that: (1) they are members of a protected class; (2) they were qualified fo r their positions; (3) they were subjected to an adverse employment action; and (4 ) they were treated less favorably than similarly situated employees. Bryan v . McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). The parties do not d is p u t e whether Martin and Irons were members of a protected class or whether 8

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No. 09-30857 t h e y were qualified for the positions they occupied at ASIG (although the parties d o dispute Martin's qualification for the positions to which he sought promotion, a s noted below). As such, our analysis with respect to each claim is focused p r im a r ily on the third and fourth elements of the prima facie case. i. Bonus N o ASIG employee received a bonus from ASIG for their post-Katrina e ffo r t s at the New Orleans airport. All of the evidence in the record states that b o n u s e s were paid exclusively to Signature's employees. Martin testified he did n o t know whether any ASIG employees received a bonus for post-Katrina work, a n d Irons affirmatively stated that only Signature employees received such a b o n u s . Crouch received a bonus, but he was a Signature employee at the time K a t r in a struck New Orleans, and he received his bonus from Signature. Similarly, appellants argue that Joseph Giarratano ("Giarratano"), ASIG's fo r m e r training manager, received a storm bonus. The record evidence cited by a p p e lla n t s merely states that Giarrantano received "a bonus." Other

u n c o n t r o v e r t e d record evidence reveals that Giarratano's bonus was paid by A S I G as a reward for overall safety performance at the facility rather than any s t o r m -r e la t e d work. Consequently, appellants have failed to raise a genuine is s u e of material fact as to whether similarly situated ASIG employees were t r e a t e d more favorably by ASIG. As such, summary judgment was appropriate o n appellants' bonus claims. ii. The Letter-Writing Requirement A p p e lla n t s both contend that ASIG discriminated against them on the b a s is of their race by requiring them to prepare letters of interest before p r o m o t in g them to new positions. Irons was required to prepare a letter before b e in g promoted to lead fuel farm operator. Martin was required to prepare a le t t e r before being promoted to temporary lead fueler. Both Martin and Irons r e c e iv e d the requested promotions upon tendering the required letter. 9

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No. 09-30857 A s the district court found below, appellants' claims flowing from ASIG's le t t e r -w r it in g requirement fail because requiring an employee to undertake such a task does not constitute an adverse employment action. "[A]n employment action that `does not affect job duties, compensation, or benefits' is not an a d v e r s e employment action." Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th C ir . 2004) (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5 t h Cir. 2003)). As such, we find the district court did not err when it granted s u m m a r y judgment on appellants' claims related to the letter-writing r e q u ir e m e n t. iii. Martin's Promotions Claims I n addition to the letter-writing claim, Martin also alleges ASIG d is c r im in a t e d against him on the basis of race when it failed to promote him to t r a in in g manager or operations manager. Even assuming Martin was qualified fo r these positions6 , Martin concedes that he never expressed interest in either p o s it io n to anyone at ASIG. Failure to apply for a disputed promotion will bar a "failure to promote" claim absent a showing that such an application would h a v e been a futile gesture. Shackelford v. DeLoitte & Touche, LLP, 190 F.3d 3 9 8 , 406 (5th Cir. 1999); see also Grice v. FMC Techs. Inc., 216 F. App'x 401, 406 (5 t h Cir. 2007) (unpublished) (finding no prima facie showing of "failure to p r o m o t e " where employee failed to apply for the promotion at issue). The "futile

Martin's qualifications for either position are dubious based upon the available record evidence. Martin does not dispute that the operations manager position would have constituted a three-level promotion above his then-current position and the training manager promotion would have constituted a two-level promotion. Moreover, the district court found that Martin failed to dispute that he was unqualified for either position, and Martin has offered nothing meaningful on appeal to suggest he was qualified. Consequently, it is doubtful that Martin has carried his prima facie burden of demonstrating that he was qualified for a promotion he did not receive. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004) (plaintiff must show she applied for a position for which she was qualified as part of the prima face case). Nonetheless, we do not reach this issue as Martin's failure to apply for either job defeats his claim.

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No. 09-30857 g e s t u r e " exception will only apply where "the applicant for the promotion was d e t e r r e d by a known and consistently enforced policy of discrimination." Shackelford, 190 F.3d at 406. Martin argues his claim survives under the "futile g e s t u r e " exception. Specifically, he argues that "he was not given the

o p p o r t u n it y to apply because ASIG approached who they wanted for the p o s i t i o n s and filled them." This allegation, without more, does not suggest "a k n o w n and consistently enforced policy of discrimination" in ASIG's promotion s y s t e m . As such, Martin's failure to apply is fatal to his promotion-related d is c r im in a t io n claims. iv . Discharge B o t h appellants allege that they were discharged whereas similarly s it u a t e d white employees were not subject to similar punishment for similar in fr a c tio n s . Even assuming Martin and Irons can make out a prima facie case 7 , t h e y have failed to create a genuine issue of material fact as to ASIG's proffered r e a s o n s for termination. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) ("[I]f the defendant has offered a legitimate

n o n d is c r im in a t o r y reason for its action, the presumption of discrimination d e r iv e d from the plaintiff's prima facie case simply drops out of the picture . . . ." (internal quotation marks omitted)). To meet their burden, appellants were r e q u ir e d to present evidence showing either intentional discrimination or the fa ls it y of the employer's explanation. Bryan, 375 F.3d at 360. Importantly, " [t ]h e question is not whether an employer made an erroneous decision; it is
Again, appellants' appear unable to make out a prima facie case under the facts presented on this record. As part of their prima facie showing, appellants were required to show either: (1) they were replaced by an individual outside their protected class; or (2) other similarly situated employees were treated more favorably. Bryan, 375 F.3d at 360. Both Martin and Irons were replaced by African-Americans. Additionally, as the district court explained in detail below, appellants have not shown disparate treatment because they have not adduced any evidence showing that white employees were not reprimanded or discharged for engaging in "essentially identical" conduct. See Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096, 1101 (5th Cir. 1985).
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No. 09-30857 w h e t h e r the decision was made with discriminatory motive." Mayberry, 55 F.3d a t 1091. A S I G claims it terminated Martin for violating fueling procedures by p r e fu e lin g United aircraft on two occasions. Martin vociferously contests the c o n c lu s io n that he was in fact prefueling either plane. Yet he offers no

c o m p e t e n t summary judgement evidence creating an issue of material fact on t h e question of whether ASIG believed he had prefueled the planes and t e r m in a t e d him upon that honestly held belief after receiving two complaints fr o m a customer. Accordingly, the district court correctly granted summary ju d g m e n t on Martin's disparate impact discharge claim. S im ila r ly , Irons has offered no evidence suggesting ASIG's stated reasons fo r terminating him were pretextual. ASIG asserts that it terminated Irons for c a u s in g a major fuel spill by failing to properly perform his job duties. Irons a d m it s that he was previously cited by ASIG for leaving the fueling area during fu e lin g operations. Irons admits he got "sidetracked" and left the area again d u r in g fueling operations on the day of the spill. Irons has not directed the court t o any record evidence suggesting or supporting an inference that ASIG fired h im for any reason other than his role in the fuel spill incident. As such, the d is t r ic t court did not err in granting summary judgment on Irons's disparate im p a c t discharge claim. 2. Retaliation In addition to raising disparate impact claims, Martin and Irons also a lle g e d that their terminations were retaliatory.8 Like the district court, we a s s u m e for the sake of argument that appellants have established a prima facie case of retaliatory termination and turn to ASIG's proffered reasons. As to

Like the district court, we find that appellants' other retaliation claims were abandoned in the court below. Accordingly, we restrict our analysis to retaliatory termination as the only remaining claim.

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No. 09-30857 M a r t in , ASIG pointed to his violations of fueling procedures as the grounds for h is termination. The uncontroverted evidence demonstrates that ASIG received a report from a customer that Martin was prefueling planes, required Martin to b e immediately counseled and retrained by his supervisor, and received a second r e p o r t that Martin was prefueling planes again the very next day coupled with a demand from the customer that Martin not fuel its airplanes. Though Martin a g a in disputes whether he was prefueling the aircraft in question, Martin has fa ile d to adduce any evidence supporting an inference that ASIG's proffered j u s t ific a t io n was pretextual for the reasons set forth in detail above. Accordingly, the district court properly granted summary judgment. S im ila r ly , Irons has failed to offer any evidence suggesting ASIG's stated r e a s o n s for terminating him were pretextual. ASIG claims it fired Irons for c a u s in g a major fuel spill. Irons has not disputed that he was responsible for the fu e lin g operation that produced the spill, that he was away from the fueling area a t the time of the spill, and that he had been previously disciplined for a similar in fr a c tio n . Irons asserts that several write-ups he received after filing his EEOC c h a r g e were fabricated, and, as a result, he has created a fact issue on pretext r e g a r d in g the reasons for his termination. First, his reliance on our decision in S h ir le y v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992), is misplaced. Unlike t h e plaintiff in Shirley, Irons was not suddenly subject to complaints about his w o r k performance only after engaging in protected activity. Id. at 42. The r e c o r d is replete with instances of formal discipline spanning Irons's time at A S I G . Moreover, even if the write-ups at issue were the first Irons had received, h is argument is unavailing as he has adduced no evidence disputing the grounds u p o n which he was disciplined after engaging in protected activity. See

N e w s o m e v. Collin County Cmty. College Dist., 189 F. App'x 353, 356 (5th Cir.

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No. 09-30857 2 0 0 6 ) (unpublished)9 (deeming claims of false write-ups insufficient to create a g e n u in e issue of material fact where party "did not introduce evidence to rebut a n y of the incidents for which she received a written warning"). Accordingly, the d is t r ic t court properly granted summary judgment on Irons's retaliation claims. B. Alleged Jury Trial Errors 1. Evidentiary Claims A p p e lla n t s raise three claims of error based on evidentiary rulings made b y the district court during the trial on their hostile work environment claim. We review a district court's evidentiary rulings for abuse of discretion. Alaniz v . Zamora-Quezada, 591 F.3d 761, 774 (5th Cir. 2009). We address each claimed e r r o r in turn. i. Admission of ASIG's Time Record Summaries A p p e lla n t s first contend the district court erred when it admitted two s u m m a r ie s of ASIG's employee time records into evidence. The summaries were p r e p a r e d from time records also admitted as evidence during the course of the t r ia l.1 0 They were offered in response to Irons's testimony that he observed the n o o s e on a weekend between December 2005 and January 2006 while working w it h Martin and Roberts. ASIG submitted the summaries in conjunction with t h e time records as impeachment evidence to show that Martin, Irons, and R o b e r t s had never worked together on a weekend during that time period. Appellants have identified no discrepancy between the original records and the d a t a included in the summary. Accordingly, the district court's decision to admit

Although an unpublished decision is not precedent, it is cited for its factual similarity and persuasive reasoning. Though mentioned in passing in the opening brief by exhibit number, appellants make no arguments regarding the district court's admission of the underlying time record reports. Accordingly, any arguments regarding the admissibility of the underlying records themselves have been waived. Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) ("All issues not briefed are waived.")
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No. 09-30857 t h e summaries fell within its broad discretion under Federal Rule of Evidence 1 0 0 6 , see Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir. 1982) (a d m is s io n of summaries proper where appellant failed to identify any d is c r e p a n c y between original records admitted into evidence and the r e p r e s e n t a t io n of that data in the disputed summaries),1 1 and, in any event, w o u ld be harmless error. ii. Exclusion of Appellants' Audio Tape N e x t , appellants contend the district court erred when it excluded a CD c o n t a in in g five tape-recorded conversations between appellants and various A S I G employees. The district court excluded the CD because, among numerous o t h e r reasons, the intelligible portions of the taped conversations were irrelevant t o the remaining claims. Upon review, the tapes contain absolutely no

in fo r m a t io n related to the noose incident, the "you people" comment, or any o t h e r evidence supporting appellants hostile work environment claim. Accordingly, the district court did not abuse its discretion by excluding the CD o n relevance grounds.1 2 Perez v. Tex. Dep't of Crim. Justice, 395 F.3d 206, 210 (5 t h Cir. 2004) ("To be admissible, evidence must be relevant."); see also FED. R. E VID. 402. iii. Exclusion of Appellants' Aircraft Photograph F in a lly , appellants claim the district court erred when it excluded an u n a u t h e n t ic a t e d photograph of an unidentified aircraft at trial. The district c o u r t acted within its broad discretion by excluding the photograph. See Ellison

We also note that appellants contend on appeal that they were offered insufficient time to review the summaries. At trial, appellants did not object to the admission of the summaries on these grounds. That fact aside, the district court specifically provided for a period of time during the trial day for appellants to review the new material with their counsel. As we find the evidence was properly excluded on relevance grounds, we need not address the district court's laundry list of other reasons for refusing to admit the CD at trial.
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Case: 09-30857

Document: 00511208749

Page: 16

Date Filed: 08/19/2010

No. 09-30857 v . Conoco, Inc., 950 F.2d 1196, 1206 n.12 (5th Cir. 1992) (declining to find an a b u s e of discretion where evidence excluded on the basis of counsel's fault). 2 . Batson A p p e lla n t s attempt to appeal the district court's denial of their Batson c h a lle n g e s as to Jurors 1 and 5. During voir dire, appellants failed to contest or d is p u t e ASIG's proffered reasons for striking these jurors. Accordingly, their B a ts o n claims have been waived. See Wright v. Harris County, 536 F.3d 436, 4 3 8 (5th Cir. 2008) ("[An appellant] waive[s] his Batson claim, however, by fa ilin g to rebut the [opposing party's] reasons for striking [a contested juror] at t h e time he raise[s] his claim."). 3. "Jury Error" F in a lly , appellants claim the jury "erred"1 3 when it found for ASIG on the h o s tile work environment claim presented at trial. In essence, they argue that t h e jury simply got it wrong. In the absence of any claim of error on the part of t h e trial court, we have no error to correct, as this court cannot usurp the jury's fa c t -fin d in g role. Brennan's Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th C ir . 2004) ("[T]he court may not make credibility determinations or weigh the e v id e n c e , as those are jury functions."). I I I . CONCLUSION F o r the reasons set forth above, we AFFIRM the district court's judgment, G R A N T ASIG's motion to strike, and DENY appellants' motion to strike and m o t io n to file supplemental brief.

Appellants contend that our review of this contention falls under a "clearly erroneous" standard, while ASIG argues "plain error" review. Appellants' argument is nothing more than an invitation to replace the jury's judgment with our own, which would be untenable under any standard of review.

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